255 F. 558 | 8th Cir. | 1918
From overruling of ¡mutual exceptions to report of master in a patent accounting, both parties appeal. The infringing device was a small water-operated motor used upon washtubs. The master’s report recommended recovery of profits of $1,-796.75.
“Form of Accounts Before 'Master. — All parties accounting before a master shall bring in their respective accounts, in the form, of debtor and creditor; and any of the other parties who shall not bo satisfied with the account so*560 brought in shall he at liberty to examine the accounting party viva voce, or upon interrogatories, as the master shall direct.” 198 Fed. xxxvii, 115 C. C. A. xxxvii; Compiled St. 1916, p. 2523; 2 U. S. St. Ann. 534.
The evident and beneficent purpose of this rule was to narrow the scope of the examination before the master. Beckwith v. Range Co. (D. C.) 207 Fed. 848; In re Beckwith, 203 Fed. 45, 121 C. C. A. 381. Often a plaintiff would be willing to accept many items of such an account, thus eliminating them from further controversy or proof. At the same time he is left free to examine the defendant upon any or all of the items if he objects thereto. We do not find in the rule, however, any mandatory requirement that such objections take any particular form. In our judgment, the construction which will make the rule most effective in shortening accountings, and at the same time safeguard the interests of the parties, is as follows: After the account has been filed with the master he may require the plaintiff within a reasonable time to specify the items thereon to which there is objection, and may treat as accepted any items not so specified, confining tire proof to the objectionable items. This we deem in harmony with the purposes of equity rule No. 63, and within the powers of the master as defiped in equity rule No. 62, 198 Fed. xxxvi, 115 C. C. A. xxxvi (Compiled St. 1916, p. 2522; 2 U. S. St. Ann. 533).
Oefendants conducted a large business, of which the tub-motor-fixture portion was but a minor part. As to that portion, the custom was to sell the combined unit of motor, tub, and attaching fixture for a single price, though there were instances of separate sales of the tubs and of the motors.
The evidence discloses that portions of the fixtures, to wit, the dolly parts (dolly dasher, shaft, and collar) could be and were used in connection with any power-operated' tub, whether the infringing motor or some other were used, and that the other portions of the
There is no attack upon the master’s finding of $48,707.62, as the total sales of units containing the infringing motors after all proper allowances for returns and collection losses. But both parties claim error as to items included or excluded by the master in arriving at the cost price of the different elements of the unit.
Complainant contends: (1) That the tub cost allowed was too high. (2) That an item ($391.11) for experimental work in connection with the infringing motor should have been rejected. (3) That an item ($958.50) of overhead expense apportioned to the motor business as “capital investment” should have been rejected.
Defendants contend: (1) That the motor labor cost was improperly reduced from $5,391.99 to $3,172.14. (2) That an item ($119.43) for patterns was improperly rejected. (3) That an item ($957.60) for experimental, shop labor was improperly rejected. (4) That an item ($1,041.99) for advertising was improperly rejected.
Based on yearly sales and average yearly prices, motors averaged defendant in cost $2.39. The testimony also is that the average stock of motors carried by defendant was a supply for 2 or 3 months. During the 61 months of the infringement 5,266 motors were bought and sold by defendant. Defendant carried no long accounts thereon, as practically all bills to it were paid within the discount period. It is certainly sufficiently liberal to> allow during the infringing period an average carried supply of 216 motors, or 2% months’ supply. At
The item of “Labor, $3,172.14,” for motors and accessories, found by the master, is approved in preference to an allowance of $5,391.99, claimed by defendant. The evidence convinces that the claimed amount was not all expended upon these infringing motors, that such an amount would be an unreasonable expenditure for the purpose, and that the amount allowed would have been amply reasonable.
The item of $957.60 for experimental labor was properly rejected by the master. This labor was performed before the period of infringement, and the reasons against the allowance of the other experimental labor item disposed of above apply here.
Proceeding further in the question of profit: The sale price of $48,707.62 for the unit is unchallenged. The cost price for the unit is made of the above tub cost ($10,384.00) ; motor parts ($12,114.80), undisputed; accessories ($5,362.07), undisputed; the three items found above of labor ($3,172.14), tools and patterns ($582.45), and advertising ($344.36); and of the ovex'head chargeable to the motor and accessories. This last item is found as follows:
The overhead of motors and accessories was reached on a productive labor apportionment (the basis used by the master and both parties). This gave the ratio of $3,172.14 (the motor and accessory labor) to $127,725.24 (the total labor), or 2.48 per cent, of the total overhead allowed; 2.48 per cent, of $202,852.44 (the total overhead) is $5,030.84 above. A tabulation of the selling price, cost price, and resulting profit is as follows:
Total net sale price.............................................§48,707.62
Tub cost.............................................§10,384.00
Motor parts...............................§12,114.80
Accessories ........... 5,302.07
Labor (motor and a.eces.).................. 3,172.14
Motor and acces. overhead...............5,080.84
Tools and patterns.............. 582.45
Advertising .......... 344.88
Motor ,and accessories cost............................ 26,008.66
Cost of unit...................................................... 36,900.66
Profit ..........................................................§11,716.90
The final problem is the proper apportionment of the above profits. The master found the complainant could recover alone for the motor. Wre find it can recover for the motor and for the accessories (except the dolly parts). The total cost of the dolly parts is $776.66. This is found as follows: Two of the above items are “Accessories, $5,-362.07,” .and “Labor, $3,172.14.” The “accessories” item is the purchase price paid by defendants for the complete accessory unit, of which the dolly parts were a poxtion. The evidence shows that these dolly parts for each accessory or fixture cost $.1002 each. As there were 5,192 such fixtures sold, this cost of the dolly parts would be $520,238. To this cost should be added a proper portion of the labor item of $3,172.14 expended upon the motors and accessories, of the overhead of $5,030.84 upon motors and accessories, and of the ¿dvertising expense of $344.36, as expenses arising after purchase of the parts and while they were yet in stock. There is no showing that the “tools and patterns” item had anything to do with the ac
The cause is remanded to the trial court, with instructions to enter judgment for the complainant for $8,179.78 and costs.